R. v. Labadie, 2011 ONCA 227

• Jurisdiction: Ontario
• Judge: Blair, MacFarland and Watt, JJ.A.
• Neutral Citation: 2011 ONCA 227
• Citation: 2011 ONCA 227,(2011), 277 O.A.C. 153 (CA),105 OR (3d) 98,275 CCC (3d) 75,277 OAC 153,105 O.R. (3d) 98,277 O.A.C. 153,(2011), 277 OAC 153 (CA)
• Date: 03 September 2010
• Court: Court of Appeal (Ontario)

R. v. Labadie (M.) (2011), 277 O.A.C. 153 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MR.019

Her Majesty the Queen (applicant/appellant) v. Matthew Labadie (respondent)

(C51318; 2011 ONCA 227)

Indexed As: R. v. Labadie (M.)

Ontario Court of Appeal

Blair, MacFarland and Watt, JJ.A.

March 24, 2011.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level. The trial judge found that the Crown had failed to establish that the accused's breath samples had been received "directly into" the approved instrument. This meant that the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code. The charge was dismissed on this "very small technicality". In fact, the breathalyzer technician had testified that the sample was provided "directly into" the instrument. The Crown appealed under s. 813(b)(i) of the Code, asserting that the trial judge had misapprehended the technician's evidence. The summary conviction appeal judge agreed, allowed the appeal and remitted the case to the trial judge. The Crown sought leave to appeal, asserting that the summary conviction appeal judge had erred by remitting the case to the trial judge, rather than entering a conviction.

The Ontario Court of Appeal granted leave to appeal and allowed the appeal, entering a conviction. The case was remitted to the trial judge for sentencing.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See second Criminal Law - Topic 7634 ].

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "Appeal Court" - Scope of appeal (incl. powers of judge) - The accused was charged with driving while having an excessive blood-alcohol level - The trial judge found that the Crown had failed to establish that the accused's breath samples had been received "directly into" the approved instrument - This meant that the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code - The charge was dismissed on this "very small technicality" - In fact, the breathalyzer technician had testified that the sample was provided "directly into" the instrument - The Crown appealed under s. 813(b)(i) of the Code, asserting that the trial judge had misapprehended the technician's evidence - The summary conviction appeal judge agreed, allowed the appeal and remitted the case to the trial judge - The Crown appealed, asserting that the summary conviction appeal judge had erred by remitting the case to the trial judge, rather than entering a conviction - The Ontario Court of Appeal allowed the appeal - In appeals under s. 813(b) of the Code, the summary conviction appeal court had no authority under s. 822(1) or otherwise to remit the case to the trial court for further consideration - Section 822(1) contained no express provision that authorized this remedy - Likewise, the incorporated sections of Part XXI of the Code included no such authority - The order remitting the case to the trial judge was made without jurisdiction and had to be quashed - See paragraphs 31 to 37.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The accused was charged with driving while having an excessive blood-alcohol level - The trial judge found that the Crown had failed to establish that the accused's breath samples had been received "directly into" the approved instrument - This meant that the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code - The charge was dismissed on this "very small technicality" - In fact, the breathalyzer technician had testified that the sample was provided "directly into" the instrument - The Crown appealed under s. 813(b)(i) of the Code, asserting that the trial judge had misapprehended the technician's evidence - The summary conviction appeal judge agreed, allowed the appeal and remitted the case to the trial judge - The Crown sought leave to appeal, asserting that the summary conviction appeal judge had erred by remitting the case to the trial judge, rather than entering a conviction - The Ontario Court of Appeal granted leave to appeal - The issue raised related to the appellate jurisdiction of the summary conviction appeal court in appeals taken by the Crown under s. 813 from dismissals of informations at trial in summary conviction proceedings - This issue transcended the peculiar facts here and was of significance to the general administration of criminal justice - Further, the proposed ground of appeal had merit - See paragraphs 22 to 30.

Criminal Law - Topic 7608

Summary conviction proceedings - Appeal to a court of appeal - When available - Order dismissing an information - [See Criminal Law - Topic 7602 ].

Criminal Law - Topic 7634

Summary conviction proceedings - Appeals - New trials - Power to dispose of charge without new trial - [See Criminal Law - Topic 7544 ].

Criminal Law - Topic 7634

Summary conviction proceedings - Appeals - New trials - Power to dispose of charge without new trial - The accused was charged with driving while having an excessive blood-alcohol level - The trial judge found that the Crown had failed to establish that the accused's breath samples had been received "directly into" the approved instrument - This meant that the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code - The charge was dismissed on this "very small technicality" - In fact, the breathalyzer technician had testified that the sample was provided "directly into" the instrument - The Crown appealed under s. 813(b)(i) of the Code, asserting that the trial judge had misapprehended the technician's evidence - The summary conviction appeal judge agreed, allowed the appeal and remitted the case to the trial judge - The Crown appealed, asserting that the summary conviction appeal judge had erred by remitting the case to the trial judge, rather than entering a conviction - The Ontario Court of Appeal allowed the appeal - The trial judge erred in law in failing to apply the presumption of identity to the uncontroverted evidence of the breathalyzer technician - His misapprehension of the evidence led him to conclude that the condition precedent to the operation of the presumption had not been satisfied - However, the technician's evidence satisfied that requirement - The presumption was engaged and the accused's blood-alcohol level was established - All of the other elements of the offence had been proven - But for the error, the trial judge would have entered a finding of guilt - The court entered that verdict here - See paragraphs 38 to 65.

Criminal Law - Topic 7655

Summary conviction proceedings - Appeals - Grounds - Misapprehension of evidence - [See second Criminal Law - Topic 7634 ].

Cases Noticed:

R. v. R.R. (2008), 238 O.A.C. 242; 90 O.R.(3d) 641 (C.A.), refd to. [para. 26].

R. v. Wilson (M.C.) (1993), 36 B.C.A.C. 161; 58 W.A.C. 161; 86 C.C.C.(3d) 145 (C.A.), refd to. [para. 35].

R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 152 C.C.C.(3d) 157 (C.A.), refd to. [para. 35].

R. v. Kelly (W.C.) (2002), 243 N.S.R.(2d) 201; 772 A.P.R. 201; 2002 NSCA 164, refd to. [para. 35].

R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 19 O.A.C. 25; 58 O.R.(2d) 737 (C.A.), refd to. [para. 50].

R. v. Multitech Warehouse (Manitoba) Direct Inc. and McKenna (1995), 102 Man.R.(2d) 141; 93 W.A.C. 141 (C.A.), refd to. [para. 50].

R. v. Giles and Ash (1990), 81 Nfld. & P.E.I.R. 1; 255 A.P.R. 1 (Nfld. C.A.), refd to. [para. 50].

R. v. Medicine Hat Greenhouses Ltd. and German (1981), 26 A.R. 617 (C.A.), refd to. [para. 50].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 58].

R. v. Gross (R.M.) (2001), 160 Man.R.(2d) 111; 262 W.A.C. 111 (C.A.), refd to. [para. 60].

R. v. Hewlin (S.R.) (1999), 174 N.S.R.(2d) 93; 532 A.P.R. 93 (C.A.), refd to. [para. 60].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, refd to. [para. 60].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 60].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 61].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 61].

Counsel:

David Friesen, for the applicant/appellant;

Frank Miller, for the respondent.

This application for leave to appeal and appeal were heard on September 3, 2010, by Blair, MacFarland and Watt, JJ.A., of the Ontario Court of Appeal. On March 24, 2011, Watt, J.A., delivered the following judgment for the court.